Edgerly v. Lawson

Lathrop, J.

The auditor has found that the payee of the note was a copartner in the firm of Redding and Company, in the business of manufacturing and selling an article known as Redding’s Russia Salve ; that the note declared on was given in part payment for the payee’s interest in the firm, and that she at the same time assigned all her interest in the business to the first named defendant, who signed the note as maker, and that he afterwards assigned said interest to the other defendants without consideration, except the indorsement of the note declared on and other notes given at the same time and as part of the same transaction.

The auditor further finds that the interest of the payee in the business passed from her to Lawson on the delivery of the notes *553 above referred to, and $6,000 in money given as a part of the consideration of said transfer. Lawson does not appear to have been á partner in the firm.

1. The defendants first contend that there was no evidence that the person who transferred the note to the plaintiff was a bona fide holder for value. It appears from the auditor’s report that he found that this person was a bona fide holder for value before maturity. The auditor has not reported the evidence; and it cannot be said that his finding was wrong. So far as the plaintiff is concerned, if it be true, as the defendants contended before the auditor, that the note was transferred to him after maturity and without consideration, for the purpose of bringing a,,n ■ action in this State, still he can maintain the action in the right of his transferrer, who has been found by the auditor to be a bona fide holder, before maturity, for value. Spofford v. Norton, 126 Mass. 533 . Regina Flour Mill Co. v. Holmes, 156 Mass. 11 . See also Roberts v. Lane, 64 Maine, 108. So far as the defendant Lawson is concerned we see no reason why he is not liable.

" 2. As to the guarantors, a more serious question arises. They are sued as indorsers of the note, and it is clear under our decisions that they are not indorsers but guarantors. It is also clear that a guarantee is here considered a non-negotiable chose in action, although written by a third person upon the back of a negotiable promissory note. Taylor v. Binney, 7 Mass. 479 . Upham v. Prince, 12 Mass. 14 . True v. Fuller, 21 Pick. 140 . Tuttle v. Bartholomew, 12 Met. 452 . Belcher v. Smith, 7 Cush. 482 . See also Baldwin v. Dow, 130 Mass. 416 .

To maintain the action against the guarantors at common law, the plaintiff must sue in the name of the person to whom the promise was made, namely, Mrs. Edgerly.

We express no opinion upon the question whether the St. of 1897, c. 402, entitled “ An Act relative to actions upon assigned claims,” is applicable to this case, as this question was not raised in the court below or in this court. The statute was passed subsequently to the guaranty, and after the date of the writ. See Waldron v. Harring, 28 Mich. 493 .

The result is that, as to the defendant Lawson, the exceptions are overruled; and that the exceptions of the other defendants are sustained. So ordered.